If the court cuts early voting in Ohio, it could be a difference maker in the Buckeye State.

Update, Oct. 16, 2:45 p.m.: Without any noted dissent, the Supreme Court has rejected Ohio’s application for an emergency stay—thus ensuring that the three days of early voting on the weekend before Election Day, taken away by the Ohio Legislature but restored by a federal district court and affirmed by the 6th Circuit, will go forward. What explains the court’s ruling, especially given the shaky constitutional reasoning I describe below?

First, it is always a high burden to get emergency relief from the court. The justices may not have believed that any legal error here was worth correcting. What was at issue—whether 100,000 people voted on those days or chose another day (or cast an absentee ballot)—was perhaps not worth gearing up the machinery for a potentially difficult constitutional issue. More to the point, the court’s conservatives, who would be most likely to disagree with the lower courts’ reasoning, may have decided that there was not enough at stake about those last three days of early voting for the court to issue an opinion divided on ideological lines about voting in a state which could well be pivotal in the presidential election. A divided ruling would have thrust the court to the center of the election.

The original Oct. 15 article is below:

The Supreme Court will soon decide whether to reverse a federal court ruling requiring the state of Ohio to let its counties decide whether to permit early voting during the weekend before Election Day. With the presidential race tight in Ohio, and the presidency potentially turning on the state’s electoral votes, the court’s decision could help determine who will win the White House. While the Obama campaign has a strong policy argument for the extension of early voting to include this final weekend, its constitutional claim is a major stretch.

Advertisement

In 2008, more than 100,000 voters—many poor, women, less educated, and minorities—cast ballots in Ohio during the weekend before Election Day. Voting in Ohio in 2008 was a great success compared with 2004, when long lines, especially in urban areas such as Cleveland, were common and discouraged people from voting. Early voting relieved the stress of Election Day.

But the Ohio legislature, dominated by Republicans, cut back on the last weekend of early voting for 2012. Florida’s Republican legislature did the same thing, likely out of a belief that this late period of early voting helps Democrats. Especially helpful to Democrats were “Souls to the Polls” programs to bus African-American churchgoers from Sunday services to vote. Indeed, Doug Preisse, chair of the Franklin County Republican Party and elections board member who voted against weekend hours for early voting, explained his reasoning in an email to the Columbus Dispatch. “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine. … Let’s be fair and reasonable.”

When Ohio trimmed the time for early voting, it did so through a complicated set of legislative maneuvers that left only military and other overseas voters with the right to vote on that last weekend. This different treatment provided an opening for the Obama campaign to challenge the cutback: Why should the state take away the right to vote on this last day of voting for everyone except for military and overseas voters? The campaign claimed a violation of the constitutional guarantee of “equal protection” under the laws and said the state needed to restore the last weekend of early voting for all voters.

In making the claim, the campaign has relied upon language from the Supreme Court in Bush v. Gore, which ended the disputed 2000 presidential election campaign: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” The Supreme Court in Bush held that equal protection was violated through Florida’s different and shifting standards for counting disputed ballots.

Advertisement

Still, the Obama campaign’s legal claim in the Ohio case is bold, and it seems to go further than the courts have typically gone before. The Supreme Court long ago held that it did not violate equal protection to offer absentee ballots to some voters but not others. The court usually applies a flexible balancing test to judge challenges to regular election laws: Only severe burdens on the right to vote get strict scrutiny, while lesser burdens don’t require a great justification by the state. And the court has never extended Bush v. Gore to varying rules for casting absentee or early ballots—indeed the court has not even cited Bush since it was decided.

The Obama campaign concedes that there’s no general right to cast an early ballot and agrees that the state could discriminate in favor of military voters when it came to the rules for casting overseas ballots given the additional burdens faced by these voters. Furthermore, Ohio’s attorney general points out that the state sent absentee ballot applications to all eligible voters in the state. This all seems to suggest that the burden on Ohio voters in losing the last three days is not severe.

Surprisingly, however, both a federal district court and the United States Court of Appeals for the 6th Circuit agreed with the Obama campaign that the selective cutback was unconstitutional. The district court seemed to endorse a “non-retrogression” principle: A state didn’t have to provide early voting, but once it did it could not take it away without good reason. The court said that Ohio officials had not proved they needed the last weekend to get ready for Election Day, as the state had claimed.

The district court also found that the state offered no good reason not to let all voters cast ballots if the state was already having the county election boards open the last weekend for the military and overseas voters. It ordered a restoration of early voting for that last weekend throughout the state.

Advertisement

The 6th Circuit majority agreed with the district court on both the non-retrogression and disparate treatment issues, and it relied heavily on equal protection principles from Bush v. Gore. But the 6th Circuit provided for a different remedy: it said it was up to each Ohio county to decide whether to be open at all on the last weekend, but a decision to be open meant a decision to be open for all voters. Although in theory this means some counties could decide to close their doors to all voters on this weekend, including military voters, the Ohio secretary of state has said he will require uniform early voting hours throughout the state if he loses.

The 6th Circuit’s Judge Helene White issued a concurring opinion, offering different reasons. She disagreed with the majority that the inconvenience of not having the polls open on the last weekend before Election Day imposed a severe burden on voters: After all, anyone could vote on Election Day, other early voting days, or through an absentee ballot. But she said that extra early voting was constitutionally required in this case because of Ohio’s poor performance in 2004, and evidence that early voting fixed the problem in 2008. If the polls were not open on that last weekend, Judge White reasoned, the burden could fall on poor and minority voters.

Judge White is no doubt right as a matter of policy—Ohio’s cutback of early voting could have a negative effect at the polls and was done for no good reason. Indeed, the Ohio legislature probably eliminated the last weekend of early voting for purely partisan reasons. The cutback on early voting makes it more likely that we will see problems on Election Day—including long lines and broken machines—which means even more election-related litigation.

As a matter of constitutional law, however, Judge White’s reasoning is the biggest stretch of all. The Obama campaign’s case was originally based on the disparate treatment of classes of voters. Now it has morphed into a kind of general constitutional right not to dismantle a (relatively) well-run election system. As much as I wish our Constitution provided such a guarantee, I’m skeptical that a majority of the Supreme Court will find one lurking there now.